Legitimation erases stigma of illegitimacy

Dear PAO,My query concerns the pieces of property left by my father. He had two children from his mistress while my mother, the legal wife, was still alive. After my mother died, my father had one more child, and then he married his mistress. Now, I heard that the subsequent marriage of parents makes illegitimate children legitimate. If this is so, does this mean that my father’s children with his mistress are all legitimate and each of us would receive an equal share of the estate of our father? Carlos

Dear Carlos,
It is true that there are instances where an illegitimate child is made legitimate by the subsequent marriage of the parents. This process is called legitimation, which is provided in Article 178 of the Family Code. It raises the status of an illegitimate child allowing the child to enjoy the same rights as a legitimate child (Art. 179, Family Code). As a result, legitimation blots out the stigma of illegitimacy that haunts children born out of wedlock, which is still regrettably prevalent in our society.

It, however, does not apply in all cases where the parents subsequently marry each other. As aptly pointed by Prof. Santa Maria in his book Persons and Family Relations Law, legitimation is purely a statutory creation. To take effect, the requirements of the law must be mandatorily complied with (p. 615, 4th Edition). These are:

1.The parents are not disqualified to marry each other by any legal impediment at the time of conception of the child, or are so disqualified because either or both of them are minor parents;

The first requirement generally means that the parents must be capacitated to marry each other at the time the child was conceived. They must be legally capable to marry and could have done so if they please. But, in the latest amendment of the law, legitimation was extended to cases where the legal impediment merely relates to the minority of either or both parents. Hence, a child born from a minor parent is now eligible for legitimation.

The second requirement is obvious considering that if the child was conceived during the subsistence of a valid marriage, the child is considered legitimate. Finally, the third requirement, which is the valid marriage of the parents, is the operative act that grants the legitimation of the child.

From your narration, it appears that only the third child of your father with his second wife was legitimated by the subsequent marriage. The first two children of your stepmother are both disqualified for legitimation considering that your father was still married to your mother at the time they were conceived and born. Hence, they remain as illegitimate children, and following the rule laid down in Article 176 of the Family Code, they are each entitled to receive only one half of the share which you and the legitimated child are entitled to receive, subject to the rule on testamentary succession.

Please bear in mind that this opinion is based on the facts you narrated and our appreciation of the same. Our opinion may vary if facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net